Automatic striking out – Litigants in person – Non-compliance – Unduly harsh sanction/strong>

Kinsley v Commissioner of Police for the Metropolis: CA (Civ Div): (Lords Justices Ward, Thomas, Pitchford): 9 June 2010

The appellant (K) appealed against a decision that his claim against the respondent commissioner stood struck out as a result of his failure to comply with an unless order.

K had issued a generally endorsed claim form and particulars of claim in the High Court seeking a permanent injunction, restraining the police from harassing him, his family and his property. A judge, reviewing the evidence, granted K an interim injunction restraining the police from, among other things, harassing him.

At a directions hearing, K was ordered to serve a claim form and particulars of claim by a certain date, failing which the injunction would be automatically discharged. K failed to comply and the injunction fell away. K orally sought a new injunction. A judge was satisfied with an undertaking from the commissioner that the police would not harass K. Consequently, K applied for another injunction against the police. The commissioner withdrew his undertaking and a judge refused K’s application. Subsequently, at an interlocutory hearing, a judge ordered that unless K gave specific disclosure in relation to his substantive claim for a permanent injunction, his claim would be automatically struck out. The unless order consequent upon that judgment was drawn up by representatives for the commissioner and included a term which K later took issue with. K appeared in court again when making a without notice application for an adjournment of proceedings generally, pending submission of his case to the European Court of Justice. The judge refused the application but K took the opportunity to complain of the terms of the unless order. Neither K nor the judge specifically addressed whether time under the unless order continued to run while he was making his application. Time under the unless order expired without K complying with its terms and K’s claim was automatically struck out. On appeal against that sanction, it was K’s position that he had misunderstood the effect of his application for an adjournment on time under the unless order. The judge confirmed that K's claim stood struck out.

Held: (Thomas L.J dissenting) The activation of a sanction in an unless order striking out a claim by a litigant in person, who had already persuaded a judge to impose an interim injunction in his case, was a powerful weapon in a judge’s case management armoury that should only be deployed where its consequences could be fully justified, Marcan Shipping (London) Ltd v Kefalas [2007] EWCA Civ 463, (2007) 1 WLR 1864 followed. In the present case, it was at least possible to infer that K, at the time of appearing in court to ask for an adjournment of proceedings generally, had been labouring under a misapprehension that time had been postponed. It was also possible that K’s conduct in relation to the offending paragraph in the order was tactical; that did not, however, provide an answer to the merits of his appeal. Considering the transcripts of the judgments below, it was apparent that there was room for ambiguity in the interpretation of whether time under the unless order had stopped or was still running. Moreover, the unless order was the first time that K had been asked to give specific disclosure. In those circumstances, the automatic sanction was unduly harsh. Finally, it was apparent that K honestly believed that his application for an adjournment of the case generally preserved his position in relation to the unless order. Accordingly, it was appropriate to set aside the striking out order and to grant K relief under rules 3.8 and 3.9 of the Civil Procedure Rules.

Appeal allowed.

In person for the appellant; Stephen Morley (instructed by Weightmans) for the respondent.